Does the US have a secret indictment against Assange?

posted at 1:36 pm on December 15, 2010 by Ed Morrissey

His attorneys think so, and so does Toby Harnden of the Telegraph. Certainly, the Obama administration has talked about charging him with something, if only after the third round of Wikileaks exposés proved significantly more embarrassing to the White House than the previous two. But that’s hardly a secret, which would give the notion of a surprise indictment a wee hint of conspiracy-theory thinking:

What’s going on? It’s more than two weeks since Eric Holder, the US Attorney General, said that the Obama administration was “looking into”charges against Assange. What might these charges be? It’s laid outpretty well here by CNN’s legal analyst Jeffrey Toobin. The bottom line is, as Toobin says, that the First Amendment protection of free speech is not a defence against a crime and the unauthorised distribution of classified information is a crime.

The likelihood is, then, that the US authorities either have a sealed arrest warrant for Assange now or they will have one very soon. What’s happening is that the US wants to wait for the right moment and the right place with which to nab him. This is likely to become a hugely controversial transatlantic issue if, as seems likely, US espionage charges are brought and extradition is sought from either Britain or Sweden.

Why would the Department of Justice bother keeping an indictment secret? It makes little sense. If a grand jury has delivered an indictment, this would be the time to make it public. The UK has custody of Assange and appear inclined to keep him under close watch. If they were willing to deny bail for a no-charge warrant from Sweden, the court would almost certainly do the same for an espionage warrant from the US.

Furthermore, the announcement of an indictment wouldn’t exactly be a public-relations disaster for the administration, either. While Wikileaks has been tremendously popular with the progressive base, it certainly hasn’t won the mainstream of America. Sixty-eight percent of respondents in the WaPo/ABC poll believe that Assange has harmed the US, and 59% want Assange arrested.

The big question will be what charge to levy against Assange. Espionage applies more to Bradley Manning than it does to Assange, although it’s still a possibility. Dissemination of classified materials certainly applies and is a serious felony. Media organizations will object, since more than a few of them have done the same thing, but arguably not as indiscriminately as Assange has in these releases. And regardless of whether the crime is committed by a reporter or not, it’s still a crime, and the First Amendment doesn’t really apply, as Jeffrey Toobin explains at CNN:

Q: What is the likelihood the Department of Justice can pursue legal action against WikiLeaks, both in civil and/or criminal court? How?

A: There already is a criminal case against Manning, and I am certain there will be further charges against others, especially Assange. I would not be at all surprised if there was a sealed arrest warrant currently in existence against him. The question is whether the American authorities can find him and bring him back to the United States for trial. I think civil charges are less likely, given the peculiar nature of WikiLeaks as a corporation and Web site. There probably is not much to sue.

Q: If WikiLeaks can be defined as a disseminator of information — or a medium through which information is shared — isn’t it afforded the same constitutional protections as the New York Times, CNN and other news organizations?

A: WikiLeaks has the same First Amendment rights as any company or group of individuals. But the First Amendment is not a license to break the law — for WikiLeaks, the New York Times or anyone else.

If the DoJ is serious about indicting Assange on anything, they’d better do it soon, secret or not.

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The trick, I think, is charging Assange without charging The New York Times. Holder isn’t going to alienate The Voice of the Democratic Base. And Assange, at trial, is surely going to raise the issue of ‘why me and not them’?

Also, the law (see ‘the Pentagon Papers’) is pretty much on Assange’s side.

The USA has no case against Assange that would not also implicate every single news organization in the world. That is why the warrant would be “secret”.

Assange is a sorry excuse for a human being, be he is not a “traitor” because he is not a US citizen. I doubt very much he will ever be prosecuted in the US. He is too high-profile to be killed, and the current administration would rather silence Rush and Glen than Assange.

In the end, he might serve some time on trumped up charges, but he will walk free.

Why would the Department of Justice bother keeping an indictment secret?

PR Baby PR…

ya see if they have a known indictment on da dude and for whatever reason the country that is hold’n him decides not to turn him over to Barry and company… then there is mucho egg on Barry’s face. If the thang is hidden then Barry can claim that they didn’t have grounds to pursue da guy.

Selective prosecution is legal if it’s not based on race, religion &c. If they put Assange away for any length of time it would probably deter Sulzberger et al (or Ed, or Allah, let’s be frank) from emulating or implicitly enabling or legitimizing him. And Assange, as a non-resident foreigner, can’t cry First Amendment as plausibly as a domestic news organization could. At the very least, tying him up in court would be an imposed cost, though I suppose Soros or somebody similar would foot the bill. Whether the US is willing to engage in an
international PR firefight is a countervailing
consideration. As Obama dumps on allies anyway he’s probably ready for action.

During the Bush administration, the NYT violated the Espionage Act twice, once for section 793 (transmitting defense information), and once for section 798 (disclosure of communication intelligence activities). I don’t know why the Bush administration declined to prosecute, but decline they did. That doesn’t change the law, it only allowed the NYT to get away with breaking it.

The Pentagon Papers case only established that the government has a high bar to pass in order to prevent publication (prior restraint), the decision doesn’t affect the government’s ability to prosecute for publication (noted explicitly in the opinion).

IANAL, but I haven’t found any law that Assange broke publishing the diplomatic cables. The military infodump however, violated either or both of sections 783 and 794.

I have no doubt that Assange can be successfully prosecuted for espionage, if only the US can arrest him. Of course, it doesn’t follow that Holder’s DoJ can be trusted to competently prosecute the case.

Yes so is sh!tting on a Koran in Pakistan but If you don’t do it in Pakistan can they charge you, extradite you, try you, and execute you?

Assange is not a U.S. Citizen and as far as I know he was not on this soil when he committed the crime. The country he was in has jurisdiction and possibly the country he is from. But I can’t see how we have a case against a foreigner on foreign soil. Can’t you see that?

No one here seems to doubt the guy who handed the info should be charged with treason, espionage, whetever; my question is why some seem to think there is no basis for action against Assmange. If he the soldier had handed over these papers to a Russian spy, instead of a preening anarchist, and we caught the spy, too, what would the charges be? Let’s just say Russia doesn’t want their spy back (he’s not very pretty, say). What do we do with him then? Just let him go? I think not.

I tend to go with the earlier suggestion; the O admin is searching desperately for a way to get the guy that leaves the New York Times safely out of bounds.

Also, as probably the worst damage he’s done in terms of physical danger to his targets is Afghanistan, why isn’t the Australian Government after him? Is he not an Australian citizen? They have soldiers in the ‘Stan as well.

Assange is not a U.S. Citizen and as far as I know he was not on this soil when he committed the crime. The country he was in has jurisdiction and possibly the country he is from. But I can’t see how we have a case against a foreigner on foreign soil. Can’t you see that?

esnap on December 15, 2010 at 2:49 PM

That only proves he didn’t commit treason, unlike his pal Bradly. It doesn’t prove that he can’t commit a crime against the US.

What if he’d hacked into the Pentagon’s computers and activated some missiles? Being able to do that from Australia or Sweden or whatever, doesn’t make it any less of a crime.

Assange is not a U.S. Citizen and as far as I know he was not on this soil when he committed the crime. The country he was in has jurisdiction and possibly the country he is from. But I can’t see how we have a case against a foreigner on foreign soil. Can’t you see that?

This was despite Noriega not setting foot in the US. This is a bit different than the Assange case, but does stand for the proposition that a foreigner, acting in a foreign country, can be charged with a crime in the US.

And he’s currently in a French jail, having been convicted in France of murder and money laundering. Again, despite not setting foot in France.

As for the Pentagon Papers case, the S.Ct. merely held that they weren’t going to stop publication beforehand, not that the NY Times & its people couldn’t be charged with a crime afterwards.

Assange is not a U.S. Citizen and as far as I know he was not on this soil when he committed the crime. The country he was in has jurisdiction and possibly the country he is from. But I can’t see how we have a case against a foreigner on foreign soil. Can’t you see that?

Why would the Department of Justice bother keeping an indictment secret? It makes little sense. If a grand jury has delivered an indictment, this would be the time to make it public. The UK has custody of Assange and appear inclined to keep him under close watch. If they were willing to deny bail for a no-charge warrant from Sweden, the court would almost certainly do the same for an espionage warrant from the US.

Ed, it’s probably because the grand jury has not issued an indictment yet (i.e., has not determined whether there is sufficient evidence and probable cause for an indivtment to be issued). Up until that point, it should be a secret whether or not a grand jury has been empaneled.

This was despite Noriega not setting foot in the US. This is a bit different than the Assange case, but does stand for the proposition that a foreigner, acting in a foreign country, can be charged with a crime in the US.

And he’s currently in a French jail, having been convicted in France of murder and money laundering. Again, despite not setting foot in France.

As for the Pentagon Papers case, the S.Ct. merely held that they weren’t going to stop publication beforehand, not that the NY Times & its people couldn’t be charged with a crime afterwards.

rbj on December 15, 2010 at 3:33 PM

Go look at the link. Noriega was brought to the US after we invaded Panama.

That only proves he didn’t commit treason, unlike his pal Bradly. It doesn’t prove that he can’t commit a crime against the US.

What if he’d hacked into the Pentagon’s computers and activated some missiles? Being able to do that from Australia or Sweden or whatever, doesn’t make it any less of a crime.

Esthier on December 15, 2010 at 3:15 PM

The problem you’re going to have is that the US will have to rely on extradiction treaties with other countries in order to bring Assange here to try him for a crime. And those treaties generally exempt people from extradiction if they’ve committed a “political” crime.

Assange is not a citizen…he cannot commit treason, but he did commit espionage against the United States. Treason is the only crime with which he or any other foreigner cannot be charged under US law.

Locations don’t matter. His site actively requested the leaking of classified information…a clear enticement to espionage. What he did with it is only different from what a spy’s handler does in that it was posted on a clearinghouse of information instead of given (directly) to a foreign government.

esnap, JEM, the key is that espionage is a crime against the country, regardless of the location of the perpetrator. Assange never setting foot inside the country is just a technical difficulty.

And ironmonger69 brings up another example, this time against both the country and around 3,000 people in the country, while the leader of the conspiracy which planned and committed the crime stayed far outside it.

Countries have jurisdiction not only when the crime is committed within their borders, but also when their citizens are victims or perpetrators, and when the crime is directed against the country itself. As rbj points out with the Manuel Noriega case.

Yes! we do not have a criminal case against Bin Ladin or Assange. Nor did we have a criminal case against Hitler or Hirohito.
So we have to use other measures that do not involve judges, prosecutors and defense counsel. We just whack the F%#khead like we should have done covertly along time ago.